“源来如此”——跟着备考族读新闻：专利流氓
A patent problem
Making lawsuits more risky for patent trolls is just one way to stop abuse of the system.
20 May 2015 Nature
Earlier this year, a group of 51 legal scholars and economists sent a letter to the US Congress urging it to take action on the increasing toll of frivolous patent lawsuits. Over the past five years, they said, researchers have published more than two dozen studies on the economic consequences of patent litigation. The view that has emerged is grim: the lawsuits are hindering research and development, and slowing the launch of firms.
Less than a month later, another 40 scholars rebuffed the claims, saying that the impact of the lawsuits has been exaggerated. Furthermore, they argued, patent litigation is on the wane, and legislation to rein it in could damage the US “engine of innovation” by weakening patent protections for inventors.
Such are the muddied waters that Congress has been navigating as it seeks to respond to the cries of technology companies and of President Barack Obama’s administration, which want to crack down on lawsuits launched by ‘patent trolls’. No fairy tale, these entities are essentially holding firms to ransom, threatening organizations that are making use of the innovations with expensive, time-consuming lawsuits if they do not pay to license the patent. A 2013 attempt to curb such legislation met with failure last year. Lawmakers now seem to be making progress (see page 270).
Much of the scholarly debate boils down to a difficulty that has also plagued Congress: how to define a troll. Universities, too, license their patents, often for a fee, to those who want to use their researchers’ inventions to create a product or service. As such, they are considered ‘non-practising entities’, a more-polite term than troll, but the two labels are often used interchangeably.
学者们的争辩很大程度上可以归结为一个也困扰着国会的难题：如何定义“专利流氓”。大学也通常收取一定费用，将其专利授权给想使用他们的研究人员的发明来产品和服务的人。就此而论，它们被视为“非执业实体”，这是相对于“流氓”来说更礼貌的用词，但是这两种说法通常可以换着使用。
Scholars generally argue that universities should be considered differently because they work towards a social good and their patenting efforts spur innovation based on academic discoveries. This is in stark contrast to a troll, which accumulates weak, broad patents with the sole intent of using them to push firms into settling a lawsuit before the expense of the litigation damages their business. Lawmakers in the US Senate seem to agree with this distinction, and last month created a carve-out that excludes universities from some of the proposed measures for cracking down on patent trolls.
通常情况下，学者们称大学应该被区别看待，因为它们是朝着社会福利努力的，它们在获取专利上的努力刺激了学术发现基础上的创新。这与专利流氓形成了鲜明对比，专利流氓积累弱专利和宽泛壮丽，从而实现其唯一的目的——利用这些专利迫使公司在诉讼的花费伤及其生意之前达成案件和解。美国参议院的立法者似乎赞同这种差别，在上个月的法案中制定了一个例外，即将大学排除于提议的打击专利流氓的措施之外。
But the distinction has fuzzy boundaries: some universities are highly aggressive in monetizing their patents, even licensing them to companies that are considered to be trolls (see Nature 501, 471–472; 2013). Earlier this year, the Association of American Universities and the Association of Public and Land-grant Universities took a step in the right direction by urging their members not to align with trolls. Universities should heed that guidance or risk losing the faith of Congress and the public. The Senate loophole for institutions of higher education was a political necessity in the face of heavy lobbying by universities, but that lobbying would have been much less persuasive had it not been tied to widespread public trust.
但是这种差别的界限十分模糊：有些大学积极热衷于利用专利赚钱，甚至将其专利授权给被认为是“专利流氓”的公司。今年早些时候，美国大学学会和公立和赠地大学协会朝着正确的方向采取措施，敦促其成员不要与专利流氓为伍。大学应该听从该引导，留意失去国会和公众的信心的风险。参议院为高等院校留出的空子是面对大学的大量游说时的政治必要，但是如果不是因为这关乎广泛的公众信任，游说的说服力也会大大减弱。
As Congress has wrestled with definitions, its overall approach for deterring frivolous lawsuits has remained fairly constant: make them more risky for the plaintiff. It is a welcome change to a system that is much too easy to exploit, but it is a blunt tool that could jeopardize the ability of small firms to defend their intellectual property. And even if it succeeds in Congress, it will not tackle the underlying problem: the US Patent and Trademark Office is granting far too many vague and redundant patents. This is a particular problem for software, but affects other fields, too.
尽管国会全力应对定义的问题，它在阻止琐碎的法律诉讼方面的总体态度仍然十分坚定：让原告面临更大风险。这是对这一极易被利用的体系所进行的很受欢迎的改变，但是其手法仍然比较生硬，可能妨害到小企业维护其知识产权的能力。而且，即使在国会那里获得胜利，它也不会解决潜在的问题：美国专利及商标局授权了太多界限模糊和重复专利。对于软件来说问题尤为如此，但是也影响着其他领域。
Measures to raise the bar — including a process that allows parties to challenge a patent without needing to resort to litigation — may be having an effect: the number of patent lawsuits dropped by 18% between 2013 and 2014. But it is important not to see patent-troll legislation as a panacea. Fundamental changes at the patent office remain the key to curbing abuse.
采取措施提高专利门槛——包括允许各方质疑一项专利而无需诉诸法律诉讼的办法——可能会起到一定作用：专利诉讼数量在2013至2014年间下降了18%。但是，很重要的一点是，不能把针对专利流氓的立法看作一个万能药。专利局层面的根本改变才是制止滥用问题的关键。
文章由美国国会针对专利流氓（patent troll）的法案引发了支持与反对两方学者的争辩为背景，就专利流氓的定义，探讨了高校不应被视为专利流氓；并指出制定专利流氓立法并不是解决问题的万能之举。
联系旷日持久的苹果VS三星专利案件，这篇文章可以帮助大家更多了解美国的专利相关情况，值得一读。
更多心意我们保存在了备考族微信公众号“beikaozu”
Making lawsuits more risky for patent trolls is just one way to stop abuse of the system.
20 May 2015 Nature
Earlier this year, a group of 51 legal scholars and economists sent a letter to the US Congress urging it to take action on the increasing toll of frivolous patent lawsuits. Over the past five years, they said, researchers have published more than two dozen studies on the economic consequences of patent litigation. The view that has emerged is grim: the lawsuits are hindering research and development, and slowing the launch of firms.
Less than a month later, another 40 scholars rebuffed the claims, saying that the impact of the lawsuits has been exaggerated. Furthermore, they argued, patent litigation is on the wane, and legislation to rein it in could damage the US “engine of innovation” by weakening patent protections for inventors.
Such are the muddied waters that Congress has been navigating as it seeks to respond to the cries of technology companies and of President Barack Obama’s administration, which want to crack down on lawsuits launched by ‘patent trolls’. No fairy tale, these entities are essentially holding firms to ransom, threatening organizations that are making use of the innovations with expensive, time-consuming lawsuits if they do not pay to license the patent. A 2013 attempt to curb such legislation met with failure last year. Lawmakers now seem to be making progress (see page 270).
Much of the scholarly debate boils down to a difficulty that has also plagued Congress: how to define a troll. Universities, too, license their patents, often for a fee, to those who want to use their researchers’ inventions to create a product or service. As such, they are considered ‘non-practising entities’, a more-polite term than troll, but the two labels are often used interchangeably.
学者们的争辩很大程度上可以归结为一个也困扰着国会的难题：如何定义“专利流氓”。大学也通常收取一定费用，将其专利授权给想使用他们的研究人员的发明来产品和服务的人。就此而论，它们被视为“非执业实体”，这是相对于“流氓”来说更礼貌的用词，但是这两种说法通常可以换着使用。
Scholars generally argue that universities should be considered differently because they work towards a social good and their patenting efforts spur innovation based on academic discoveries. This is in stark contrast to a troll, which accumulates weak, broad patents with the sole intent of using them to push firms into settling a lawsuit before the expense of the litigation damages their business. Lawmakers in the US Senate seem to agree with this distinction, and last month created a carve-out that excludes universities from some of the proposed measures for cracking down on patent trolls.
通常情况下，学者们称大学应该被区别看待，因为它们是朝着社会福利努力的，它们在获取专利上的努力刺激了学术发现基础上的创新。这与专利流氓形成了鲜明对比，专利流氓积累弱专利和宽泛壮丽，从而实现其唯一的目的——利用这些专利迫使公司在诉讼的花费伤及其生意之前达成案件和解。美国参议院的立法者似乎赞同这种差别，在上个月的法案中制定了一个例外，即将大学排除于提议的打击专利流氓的措施之外。
But the distinction has fuzzy boundaries: some universities are highly aggressive in monetizing their patents, even licensing them to companies that are considered to be trolls (see Nature 501, 471–472; 2013). Earlier this year, the Association of American Universities and the Association of Public and Land-grant Universities took a step in the right direction by urging their members not to align with trolls. Universities should heed that guidance or risk losing the faith of Congress and the public. The Senate loophole for institutions of higher education was a political necessity in the face of heavy lobbying by universities, but that lobbying would have been much less persuasive had it not been tied to widespread public trust.
但是这种差别的界限十分模糊：有些大学积极热衷于利用专利赚钱，甚至将其专利授权给被认为是“专利流氓”的公司。今年早些时候，美国大学学会和公立和赠地大学协会朝着正确的方向采取措施，敦促其成员不要与专利流氓为伍。大学应该听从该引导，留意失去国会和公众的信心的风险。参议院为高等院校留出的空子是面对大学的大量游说时的政治必要，但是如果不是因为这关乎广泛的公众信任，游说的说服力也会大大减弱。
As Congress has wrestled with definitions, its overall approach for deterring frivolous lawsuits has remained fairly constant: make them more risky for the plaintiff. It is a welcome change to a system that is much too easy to exploit, but it is a blunt tool that could jeopardize the ability of small firms to defend their intellectual property. And even if it succeeds in Congress, it will not tackle the underlying problem: the US Patent and Trademark Office is granting far too many vague and redundant patents. This is a particular problem for software, but affects other fields, too.
尽管国会全力应对定义的问题，它在阻止琐碎的法律诉讼方面的总体态度仍然十分坚定：让原告面临更大风险。这是对这一极易被利用的体系所进行的很受欢迎的改变，但是其手法仍然比较生硬，可能妨害到小企业维护其知识产权的能力。而且，即使在国会那里获得胜利，它也不会解决潜在的问题：美国专利及商标局授权了太多界限模糊和重复专利。对于软件来说问题尤为如此，但是也影响着其他领域。
Measures to raise the bar — including a process that allows parties to challenge a patent without needing to resort to litigation — may be having an effect: the number of patent lawsuits dropped by 18% between 2013 and 2014. But it is important not to see patent-troll legislation as a panacea. Fundamental changes at the patent office remain the key to curbing abuse.
采取措施提高专利门槛——包括允许各方质疑一项专利而无需诉诸法律诉讼的办法——可能会起到一定作用：专利诉讼数量在2013至2014年间下降了18%。但是，很重要的一点是，不能把针对专利流氓的立法看作一个万能药。专利局层面的根本改变才是制止滥用问题的关键。
文章由美国国会针对专利流氓（patent troll）的法案引发了支持与反对两方学者的争辩为背景，就专利流氓的定义，探讨了高校不应被视为专利流氓；并指出制定专利流氓立法并不是解决问题的万能之举。
联系旷日持久的苹果VS三星专利案件，这篇文章可以帮助大家更多了解美国的专利相关情况，值得一读。
更多心意我们保存在了备考族微信公众号“beikaozu”
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